Chrysler Corp.

National Labor Relations Board - Board Decisions

Sep 28, 1977

232 N.L.R.B. 466 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chrysler Corporation, Dodge Truck Plant and Stephen
S. Smith. Cases 7-CA- 11597 and 7-CA- 13414
September 28, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On March 22, 1977, Administrative Law Judge
Walter H. Maloney, Jr., issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, the Charging
Party and the Respondent filed cross-exceptions and
supporting briefs, and the Respondent and the
Charging Party filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.3
We agree with the Administrative Law Judge, for
the reasons stated by him, that Respondent violated
Section 8(a)(1) of the Act by discriminatorily
enforcing its nonaccess rule against, and causing the
arrest of, its former employee Stephen S. Smith
because he was distributing literature in Respon-
dent's employee parking lot. However, we find that
the Administrative Law Judge's recommended Order
with respect to this violation is overly broad.
Accordingly, we will modify the recommended Order
so as to limit its scope to the violation found.
We also find inappropriate that portion of the
Administrative Law Judge's recommended Order
which requires that Respondent "notify ... appro-
priate civil authorities . . . that it is withdrawing a
criminal complaint lodged against Stephen S. Smith
.... " Inasmuch as the record reveals that the local
police, and not Respondent, signed the criminal
complaint against Smith, it is beyond our remedial
power to effect the withdrawal of that complaint.
However, since we find, in agreement with the
Administrative Law Judge, that Respondent violated
Section 8(a)(1) of the Act by, inter alia, causing
Smith's arrest on October 11, 1976, we will require
that Respondent notify the appropriate authorities of
our findings in this regard.
232 NLRB No. 74
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Chrysler Corporation, Dodge Truck Plant,
Warren, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph 1:
"1. Cease and desist from:
"(a) Disparately enforcing any rule, practice, or
policy which restricts or forbids access to its
employee parking lots by nonemployees engaging in
activities protected by Section 7 of the Act.
"(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights guaranteed by Section 7 of the Act.
2. Substitute the following for paragraph 2(a):
"(a) Notify, in writing, the Michigan State District
Court and such other appropriate civil authorities in
the City of Warren, Michigan, and/or Macomb
County, Michigan, of the findings of the National
Labor Relations Board that Respondent violated
Section 8(a)(1) of the Act by, inter alia, causing the
arrest of Stephen S. Smith on or about October II,
1976."
3. Substitute the attached notice for that of the
Administrative Law Judge.
The Respondent and the Charging Party have excepted to certain
credibility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an Administrative Law Judge's resolutions
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Standard
Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3.
1951). We have carefully examined the record and find no basis for
reversing his findings.
2 We disavow, as not supported by the record, the Administrative Law
Judge's finding that Smith "encouraged" employee attendance at the
Keweenah Bar meeting. At most, the record shows that he asked one
employee if she would be coming to the meeting.
On the other hand, in finding that Respondent discriminatorily enforced
its "non-access policy" against Smith, the Administrative Law Judge states
that there is "no indication" that the parking lots were less available to
vanous purveyors of food, drink, and merchandise after Respondent posted
its no trespassing signs in May 1976 than they were before. William Short,
an employee at the Warren plant, testified that all kinds of vendors have
come to the lot in the summer, including the summer of 1976. and have sold
their wares to employees, including plant protection personnel.
I The Administrative Law Judge inadvertently omitted from his
recommended Order the cease-and-desist language which the Board
traditionally provides in cases involving 8(aXI) discriminatory conduct. We
shall modify the recommended Order and posting notice accordingly.
466
CHRYSLER CORPORATION
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT disparately enforce any rule,
practice, or policy which restricts or forbids
access to our employee parking lots by nonem-
ployees engaging in activities protected by Sec-
tion 7 of the National Labor Relations Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL notify, in writing, the Michigan State
District Court and such other appropriate civil
authorities in the City of Warren, Michigan,
and/or Macomb County, Michigan, that the
National Labor Relations Board has found that,
by causing the arrest of Stephen S. Smith on or
about October 11, 1976, we violated Section
8(a)( ) of the National Labor Relations Act.
CHRYSLER CORPORATION,
DODGE TRUCK PLANT
DECISION
FINDINGS OF FACT
A. Statement of the Case
WALTER H. MALONEY, JR., Administrative Law Judge:
This case came on for hearing before me at Detroit,
Michigan, upon a consolidated complaint' issued by the
Regional Director for Region 7, which alleges that
Respondent Chrysler Corporation 2 violated Section 8(aX)(1)
and (3) of the National Labor Relations Act, as amended.
More particularly, the consolidated complaint alleges that
Respondent unlawfully discharged employee Stephen S.
Smith, a chief steward at its Dodge Truck Assembly Plant
in Warren, Michigan, and thereafter unlawfully caused
Smith to be removed from the parking lot of its plant on
I The principal docket entries in this case are as follows:
Charge filed by Stephen S. Smith in Case 7-CA-11597 on November 20,
1974; complaint issued on September 16, 1975; Respondent's answer filed
on September 29. 1975; charge filed by Stephen S. Smith in Case 7-CA-
13414 on October 12, 1976; order consolidating cases and amended
complaint issued on November 15 1976: Respondent's answer filed on
December 6, 1976; hearing held in Detroit, Michigan. on December 13-17.
1976, and January 4-7, 1977; briefs filed with me by the General Counsel,
the Charging Party, and Respondent on or before February 28, 1977.
These cases were originally consolidated with Case 7-CB-3215, which
case arose out of a charge filed by Stephen S. Smith against the
International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), and its Local No. 140. The
complaint issued by the Regional Director for Region 7 alleged that the
respondents in that case illegally refused to process a grievance on behalf of
Smith in violation of Sec. 8(bXlXA) of the Act. The charge in that case was
withdrawn by the Charging Party during the hearing herein and the
amended complaint was thereupon dismissed as to those respondents.
two occasions while he was distributing literature. Respon-
dent maintains that Smith was discharged for participating
in and leading a wildcat strike on May 31, 1974, and on
June 3, 1974, and that his removal from the plant premises
on two occasions in 1976 was effectuated because Smith, a
nonemployee, was trespassing. Upon these contentions, the
issues herein were drawn. 3
B. The Unfair Labor Practices Alleged
1. Background relating to the handling of
grievances by Chrysler and the UAW
Chrysler operates a large assembly plant for Dodge
trucks at Warren, Michigan, a suburb of Detroit. At this
plant, often referred to as Warren Truck, some 6,000
employees are regularly employed on two shifts. About
5,300 of them are production and maintenance personnel
who are represented by UAW Local 140. During the period
here in question, these employees were covered by the 3-
year Chrysler-UAW national agreement which ran from
1970 until September 1973, and thereafter by another 3-
year agreement which was concluded and approved in the
fall of 1973 after a I-week national strike of all Chrysler
production and maintenance employees. In addition,
Warren Truck employees have been covered by local
agreements which extend through the same approximate
time periods as the national agreements.
As a result of the series of collective-bargaining agree-
ments and the practices of the parties over an extended
period of time,4 elaborate and sophisticated machinery has
been developed for the purpose of addressing and adjusting
the large number of grievances which arise in the course of
operating large production facilities, including but not
limited to Warren Truck. On the management side, labor
relations is supervised by the corporate labor relations
office at Chrysler headquarters in Highland Park, Michi-
gan. At the plant level, labor relations is the direct and
immediate responsibility of the personnel manager who is
assisted by a supervisor of labor relations. The supervisor
of labor relations acts as spokesman for management in the
grievance procedure and in the day-to-day dealings with
union representatives. He is assisted by a number of labor
relations representatives, whose functions are to investigate
grievances at the first step of the grievance procedure,
discuss grievances with chief stewards, and attempt to
resolve grievances at the first step. Labor relations
2 Respondent admits, and I find, that it is a Delaware corporation which
maintains its principal place of business at Highland Park, Michigan. At
that and other locations Respondent is engaged in the manufacture, sale,
and distribution of trucks, automobiles, and other automotive vehicles and
products. During the calendar year 1975, a representative period. Respon-
dent, in the course and conduct of the above-described business, derived
gross revenues in excess of SI million and purchased at its Michigan
locations directly from points and places outside the State of Michigan
goods and materials valued in excess of SI million. Accordingly, Respon-
dent is an employer engaged in interstate commerce within the meaning of
Sec. 2(2), (6), and (7) of the Act. Both the International Union. United
Automobile, Aerospace and Agricultural Implement Workers of America
(UAW), and its Local 140, respectively (which are herein sometimes referred
to as Union), are labor organizations within the meaning of Sec. 2(5) of the
Act.
3 Errors in the transcript have been noted and corrected.
4 The record herein contains arbitration awards going back to 1944.
467
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representatives have limited authority to adjust grievances
without reference to higher authority in such matters as
unexcused absences. They may, within company guide-
lines, waive discipline in proper cases for such absences.5
On the union side, a grievance can be orally presented at
the first step by the chief steward of a plant department.
The chief steward is elected by the employees of the
department principally to fulfill this function. He is assisted
by line stewards (or blue button stewards) whom he
appoints. These latter are given no formal recognition by
Respondent in the grievance machinery but do play a
limited role in the presentation and resolution of grievances
which are normally generated in a large plant. Because of
the high premium placed by Respondent in keeping its
assembly lines going, chief stewards are normally permit-
ted to devote their entire working day to contract
administration rather than to the performance of produc-
tion work. If a grievance is not amicably adjusted at the
first level between the chief steward and a foreman or labor
relations representative, it is reduced to writing and given
to the shop committeeman (of whom there are three at
Warren Truck) for discussion with the labor relations
supervisor. Meetings for this purpose are normally held on
a weekly basis at Warren Truck. If this step does not
dispose of a grievance at Warren Truck, the president of
Local 140 takes up the matter with the plant manager. At
the fourth step of the procedure, the grievance leaves the
plant and local union level and is then considered by
corporate headquarters personnel and representatives of
the UAW International. These representatives meet as an
appeals board and make further attempts to negotiate the
grievance. If this effort is unsuccessful, the International
may then elect to submit the grievance to the impartial
chairman of the appeals board, who acts as a neutral
arbitrator on the matter. He hears the grievance and
renders a written decision which is binding on all parties.
In the entire history of the Chrysler-UAW grievance
machinery, only two individuals have served as impartial
chairman. 6
Correlative to the establishment of this machinery is a
limited no-strike clause contained in section 5 of the
national agreement between Chrysler and the UAW. The
general prohibition in section 5 states that:
The Union will not cause or permit its members to
cause, nor will any member of the Union take part in,
any sit-down, stay-in or slow down in any part of the
Corporation, or any curtailment of work or restriction
of production or interference with production of the
Corporation. The Union will not cause or permit its
members to cause nor will any member of the Union
take part in any strike or stoppage of any of the
Corporation's operations or picket any of the Corpora-
tion's plants or premises until all the grievance
procedure outlined in this agreement has been exhaust-
ed ....
I Respondent denies that labor relations representatives are supervisors
within the meaning of Sec. 2(l ) of the Act. This section defines supervisors.
inter alia, as persons who, in the interest of the employer can "discipline
other employees ... or . .. adjust their grievances, or effectively
recommend such action." As Respondent's own testimony indicates clearly
that labor relations supervisors perform such functions. I conclude that they
Under the agreement, most matters, including all
discharges, are appealable to the impartial chairman and
hence are not strikable. Health and safety grievances, as
well as grievances involving production standards, are not
appealable and, under certain circumstances, are strikable
during the contract term. However, before an authorized
strike may occur on such matters, the agreement provides
that the International must
within six days after receiving the Plant Manager's
[unfavorable] decision [notify] the Manager of Labor
Relations of the Corporation in writing that it has
authorized a strike, specifying the grievances that are
involved in the proposed strike, and negotiations have
continued for at least seven separate days on which
meetings have been held after the Corporation has
received such notice.
In short, sanction for health, safety, and production
standard strikes during the contract term must be obtained
from the International; the proposed strike may take place
only on specified grievances; and Respondent must have 7
days of negotiations to resolve such questions before an
actual walkout may lawfully occur. This final requirement
is normally initiated by the service by the International of
what is commonly referred to as a "seven-day letter."
2. Background relating to Stephen S. Smith
Stephen S. Smith, a Haverford College graduate, had
been employed by Respondent as a welder for approxi-
mately 4 years at the time of his discharge on June 10,
1974. At that time he was assigned to the second shift in
department 9110 of the Warren Truck plant. In this
department, often called the body-in-white department of
the metal shop, Dodge trucks are assembled from various
components prior to painting. In 1974, about 320-340
persons were employed in department 9110 on the second
shift.
During the period of 4 months in 1971, Smith received
four disciplinary warnings or layoffs but these matters
seemed to have played no part in his ultimate termination.
In terms of meeting company requirements for ability and
productivity, Smith apparently was a satisfactory employ-
ee. In 1971, he was given an interim appointment as chief
steward in department 9110 on the second shift and was
subsequently elected to that post by his constituency. He
held the position of chief steward at the time of his
discharge. For reasons indicated above, very little of his
time (except during overtime hours) was devoted to
working the assembly line after his election as chief
steward.
There is no question but that Smith was an exceedingly
active unionist. He campaigned for and was elected
delegate to the UAW's International convention in
Atlantic City in 1972. He was a candidate but was not
elected to the 1974 International convention in Los
are supervisors within the meaning of the Act and that Respondent is
vicariously responsible for their statements and actions.
6 Respondent has waived on the record any defense to this complaint
which might be interposed under the doctnne of Collyer Insulated Wire, A
Gulf and Western Systems Co., 192 NLRB 837 (1971).
468
CHRYSLER CORPORATION
Angeles. Much of the evidence introduced in this case prior
to the withdrawal of the charge by Smith against the Union
indicated that Smith was actively opposed to the Local and
International union leadership. His campaign literature
and other literature which he disseminated from time to
time disparaged the Local and International UAW leader-
ship in vehement terms. As a member of the Local 140
executive board, he was often in a minority position on
internal union questions and often voiced opposition to
Local 140 leadership at local union meetings. He actively
campaigned against ratification of the 1973 UAW-Chrysler
National Agreement.7 In fact, he was removed by plant
guards from the company parking lot while he was handing
out antiratification literature to striking employees who
had assembled at parked trailers to receive their paychecks.
Smith also opposed the 1973 Local agreement and opposed
any return to work at Warren Truck until the local
agreement had been ratified, an event which did not occur
until after three votes by the Local 140 membership.
Smith had numerous complaints against Respondent
which he pressed during his term of office as chief steward
in department 9110. His basic complaint against the Union
(both local and International) was that they were indiffer-
ent and ineffective in pressing grievances which Smith felt
were meritorious. He frequently charged that the Union
was in league with management. He voiced his displeasure
not only through normal channels (e.g., grievance discus-
sions, union membership meetings, etc.), but also by the
periodic publication and distribution of the pamphlets,
variously entitled "Unity News" or "On the Line." These
pamphlets were edited and paid for, in part, by Smith and
by other employees who held similar opinions. In these
pamphlets, which were widely distributed to Warren Truck
employees, Smith appeared as the champion of oppressed
workers against a union-management conspiracy which
sought to deprive them of decent wages and working
conditions as well as an effective means of redress. It is
clear that Smith had developed a faction or following
among Warren Truck employees which had several
meetings prior to the specific events of May 31-June 14,
1974, and which assisted Smith politically within Local 140
and in the publication and distribution of protest litera-
ture.8
In his capacity as chief steward on the second shift in
department 9110, Smith initiated and processed numerous
grievances relating to a variety of problems but principally
the questions of health and safety. While Smith was among
the most active stewards in the filing of grievances, the
General Counsel's evidence indicates that there were, at
Warren Truck, other chief stewards who statistically had
initiated more grievances, and also more health and safety
grievances, than Smith had. One of Smith's most common
complaints was that, at the second step of the grievance
machinery, the plant shop committeeman would frequently
"WWP" the grievance, that is, he would withdraw the
grievance without prejudice, and thus leave the underlying
problem unresolved. One grievance relating to Smith which
was satisfactorily adjusted related to an incident which
T Warren Truck employees declined to ratify the 1973 Chrysler-UAW
national agreement. but overall ratification carried by virtue of voter
approval at other Chrysler plants.
arose in October 1973, when Foreman Jaroslav Krawczyk
suggested to various employees the signing of a recall
petition to remove Smith as shop steward. Respondent
agreed that Krawczyk had no business making such a
suggestion, informed Krawczyk of its position, and pledged
that it would not happen again. I credit the testimony of
various witnesses that, from time to time, management
representatives privately expressed irritation at Smith and
referred to him in pejorative terms, although it is equaily
true that Smith was not singled out from among other
union activists for such hostility. Such remarks were also
expressed, albeit privately, about other chief stewards as
well.
From time to time, department 9110 and other depart-
ments at Warren Truck experienced short work stoppages
which were technically illegal but which did not result in
disciplinary action. Heat walkouts occurred on occasion
during the summertime. One foreman was asked by Plant
General Foreman Harry Pesha to keep an eye on Smith on
such occasions, as Smith was suspected of instigating these
walkouts. However, no substantive proof was ever ob-
tained of his complicity. On another occasion, at the
conclusion of the 1970-73 collective-bargaining agreement,
when Chrysler was the UAW's industry "strike target," the
entire plant, with the approval of several union stewards,
"jumped the gun" and walked out, about 4 hours before
the expiration of the agreement.
On a couple of occasions, Smith, in his capacity as chief
steward, was able to end some brief and spontaneous work
stoppages in his department which occurred because of
health and safety protests. One such occasion involved a
work stoppage by Emma Good, who complained that she
could not work any longer because of an accumulation of a
waterproofing sealer on the floor surrounding her work-
bench. Smith acted as intermediary, was able to obtain
immediate management action in cleaning up the situation,
and assisted in getting the assembly line back into
operation. On another occasion, when plant guards were
summoned during the course of a brief work stoppage,
Smith was able to intercede and get the line moving again
in exchange for a removal from the scene of plant
protection personnel.
3. Events prior to and including the May 31,
1974, walkout
The spring of 1974 witnessed a campaign for Local 140
officers and for delegates to the UAW International
convention in Los Angeles, which took place from June 3
through June 10. In this campaign, Smith lost his bid to
become a delegate from Local 140. From Smith's point of
view, it also witnessed a growing discontent in department
9110, especially over such questions as supplying workers
with adequate gloves and aprons. Some repairmen in his
department were also unhappy about undermanning in
their classification. On one occasion, a threatened walkout
was averted over the possibility of discipline to employee
John Baker who was accused of not finishing a job on the
line before a vehicle was moved to the next station on the
s About a year after his discharge, Smith ran for president of Local 140
on the workers unimty slate which he helped to form. He was not elected.
469
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assembly line. At Smith's suggestion, the repairmen had a
meeting with various foremen to voice their longstanding
complaints, but the record does not reflect what, if
anything, resulted from this meeting, which took place on
May 24.
On the evening shift of Thursday, May 30, a rumor
became rampant in department 9110 that the repairmen
were planning to strike the following day and that a
meeting to discuss grievances was planned at the Keween-
ah Bar, located just across the road from the plant, to begin
sometime before the second-shift starting time. A line
steward, John Battle, informed Smith that evening that the
repairmen "were going to walk." The record is clear that
Smith not only knew of this meeting, but also that he
encouraged attendance at it. During the course of this shift,
Smith went to the company dispensary and made a request
for medical services. He complained to the nurse in
attendance that he was having trouble breathing because of
his chronic bronchitis and was given some pills to take.
The following morning, Smith visited Dr. Jack Salomon
at Detroit General Hospital and made the same complaint
about difficulty in breathing. Salomon, a personal friend of
Smith's, examined him, noted his symptoms (including
some objective symptoms such as a red throat), and
concluded that Smith was suffering from an acute exacer-
bation of his chronic bronchitis. Salomon concluded that
Smith should not go to work on Friday, May 31, but that
he would be able to return the following Monday. He
prescribed an expectorant, phenergen (take one teaspoon
every 4-6 hours), and an antibiotic, Ampicillin (take one
capsule every 6 hours). Smith went from the doctor's office
to the Keweenah Bar. He did not have the prescriptions
filled until the following day.
Smith arrived at the Keweenah Bar between 2:30 and 3
p.m. The starting time for the second shift was set for 3:30
p.m. A group of department 9110 employees began to
gather at the bar. A number of them informed Smith that
they were not going to work. Smith testified that soon after
arriving at the bar he formed the conclusion that employ-
ees were serious and were not merely engaging in idle talk.
Smith ordered a beer and a sandwich and began talking
with various persons who were present. The bar is located
about a 10-minute walk from the part of the Warren Truck
plant where department 9110 employees were required to
punch in. When the expected complement of employees
failed to start coming in for the second shift in that
department, Respondent's management became con-
cerned.9 Respondent had received information from
second-shift supervisor William A. Thomas, who had
lunched at the Keweenah Bar, that a large number of
employees had gathered at that location, so Personnel
Director Charles W. Pond requested Labor Relations
Supervisor Michael Manty to go across the street, investi-
gate the report, and see if he could get the employees to
9 Some 344 employees were expected for work that afternoon in
department 91 10. Some 101 did not show up for work. Respondent normally
experienced a 10-percent absenteeism rate on its Friday shifts at Warren
Truck.
to Smith estimates that about 50 department 9110 employees were
present.
"n In the Respondent's view, Smith was guilty of "negative leadership," a
concept developed by the impartial chairman of the Chrysler-UAW appeals
report for work. Manty went to the barjust before 3:30 and
saw between 100 and 150 people at this location.10 They
were engaged in drinking and talking and were generally
comporting themselves in a manner that might be expected
in a barroom. Manty received a couple of catcalls from
individuals in the bar. He saw that five or six employees
had gathered about Smith and went up to Smith and spoke
to him. He asked Smith if he was coming to work. Smith,
who was drinking a beer and eating a sandwich, said he
was not because he was sick and made some remark to the
effect that "why can't a fellow take a day off?" Manty left,
returned to the labor relations office, and told Pond of his
findings. Pond suggested that Manty return and warn
Smith and the other employees that what they were doing
violated the no-strike provision (art. 5) of the national
agreement and that they were subjecting themselves to
possible discipline. Manty returned immediately in the
company of Labor Relations Representative Emmet Grier.
Again they were greeted with catcalls. ("Are you having
any trouble making trucks?" "We were wondering when
you would get here.") Manty approached Smith, told him
that the second-shift employees at the bar were in violation
of the national agreement by failing to report for work, and
warned that they would be subject to discipline up to and
including discharge. Smith gave a noncommittal reply to
the effect that, if he saw any employees around who were in
violation of the contract, he would tell them. Smith states
that he relayed Manty's message in these terms but admits
that he never actually told any employees to go to work.
Manty returned to the labor relations department and
reported his further action. At this time, Manty, Pond, and
Plant Manager Jack Kahle agreed that Smith should be
discharged for leadership and participation in an unautho-
rized walkout." Since Smith was a shop steward, they
could not under company policy effectuate the discharge
directly and had to get clearance from the corporate labor
relations office. Because of the lateness of the hour, such
clearance could not be obtained until the following
Monday. On that afternoon, Respondent received an
excessive number of sick calls so it attempted to telephone
the approximately 80 employees in department 9110 who
had not reported but who had been at work the preceding
day. They reached only a limited number of employee
residences and obtained in many instances conflicting
information as to the whereabouts of the individual in
question. As a result of the walkout or "sickout" which
occurred on that shift, Respondent administered discipline
to 82 absentee employees. Some 67 were given written
warnings, II were given 3-day suspensions, 3 were give 5-
day suspensions, and I - Smith - was eventually
discharged. During the course of the afternoon and evening
in question, Respondent lost the production of 121 trucks
out of a normal shift quota of about 320.
board in a series of arbitration awards which have been issued over the
years. According to this concept, shop stewards and other union officials
have an affumnative duty to take steps to see that their constituents live up to
the Union's contractual undertaking. The failure of a steward to take
affirmative action is this regard is viewed as "negative leadership." Such a
neglect of duty is regarded by the umpire as grounds for discharge just as
much as some overt action on the steward's part.
470
CHRYSLER CORPORATION
Meanwhile, back at the bar, a crowd of workers gathered
in the parking lot to listen to UAW Shop Chairman
Chester Peuterbaugh. Peuterbaugh told the employees to
return to work; however they did not heed his admonition.
At this point, police from the city of Warren arrived and
inquired about the gathering but took no action since it did
not appear that any violence or other misconduct was
occurring. Several employees inside the bar phoned the
Company to report that they would not be at work because
of illness. This was accomplished by a single phone call in
which the telephone receiver was passed from person to
person so that each might report his absence from the
second shift and obtain a call-in number.12 As police and
company officials had appeared at the bar, and because it
also appeared that employees were not buying food and
beverages in sufficient quantities, the management of the
Keweenah Bar ordered the department 9110 employees to
leave. Before they left, Smith made a phone call to another
nearby establishment, Neffs Lounge, and arranged for
employees to regroup at Neff's. About 50 people, including
Smith, gathered at Neffs in a side room which is often used
for meetings and parties.
Local 140 Vice President Nate Gooden and other Local
140 officials came to Neff's and addressed the employees
who were gathered there. I find that Smith, the ranking
union official among the group which Gooden addressed,
introduced Gooden and urged employees to be quiet and
to listen to Gooden. Gooden urged employees to return to
work and suggested that it might still be possible to
negotiate a return without the imposition of any discipline.
He reminded the employees in question that they were in
violation of the no-strike provision of the national
agreement and warned them that they had subjected
themselves to possible company discipline. He offered to
forgo his impending trip to the UAW convention in Los
Angeles if his presence in Detroit would serve to mollify
the'situation. His entreaties fell on deaf ears.
The gathering at Neffs continued after Gooden left.
They continued to discuss grievances. Another of the
topics of conversation was the arrangements for a proposed
picnic. to take place a week from the following Sunday.
Smith asked one of the employees, Olivia Fawlkes, to take
notes of the meeting, including names and phone numbers
of employees who would be attending the picnic. This was
the fourth or fifth time that Mrs. Fawlkes had acted as ad
hoc secretary to a factional meeting of Warren Truck
dissident employees. Smith also asked other employees to
perform certain chores to organize the picnic, such as
'' Some controversy arose at the hearing concerning whether employees
A ho expect tio miss less than 5 days' work are under any obligation to notify
lie Cornmpani It their plans. Sec. 95 of the national agreement provides that
;a ssisem shall he established in each plant which will permit an employee
to cerilt the fact that he has notified the Corporation by telephone of his
inabilitS to report for work." On March 6. 1973. Warren Truck Plant
Ma.inager Jilck Kahle made a talk over the plant intercom to employees in
shich hlie sated that, "iftou must be absent. your supervisor must know it
prior to the start ot his shift so plans can be made to cover your job. In the
paist. II has sometimes been difficult for many of you to get a call through
into the plant to report that you are going to be absent. Therefore, effective
tod, ;ia ntes sstell is being implemented to provide you with a faster
lmecthod ot reportilig your absence. This week, you will get from your
,upervisor .1 sticker to be placed on the back of) your badge. This sticker will
plos ide o)ou ith a number to call if: lor some reason you are going to be
obtaining the beer. The meeting at Neff's broke up about 7
or 8 p.m. Smith went home.
4. Events of June 3, 1974
Since company policy required headquarters clearance
for the discharge of a chief steward, Manty and Pond went
to Respondent's headquarters in Highland Park early in
the afternoon of Monday, June 3, to confer with Thomas
Miner, Chrysler's manager of labor relations of the United
States and Canada, and Frank Valle, manager of hourly
labor relations. The latter officials agreed that Smith
should be discharged and that the discipline proposed for
81 others involved in the Friday "sickout" should be
imposed. However, they required that discipline be
deferred for a week. Miner and Valle had previously been
in contact with UAW officials concerning this question. All
ranking union officials were then at the Los Angeles
convention and were not expected to return to Detroit until
the end of the week. Accordingly, the Union requested that
Respondent postpone any discipline until union officials
returned. Respondent's management fully expected to
"lose the plant," i.e., experience a general walkout at
Warren Truck, when Smith was discharged, so it willingly
acceeded to this request.
Before he left Warren Truck for Highland Park, Manty
had asked Labor Relations Representatives Grier and
Leon Lucas to go to Gate 2 to tell Smith to report directly
to the labor relations office when he came to work. Grier
relayed this message to Smith. Smith arrived about an hour
or more in advance of the scheduled reporting time and
remained in the company parking lot until almost 3:30
p.m. A group of employees gathered about him. He was
seen going up to various persons who were arriving for
work and summoning them to the gathering. Just before
3:30, a group of people which was variously estimated at
between 30 and 75, walked together into the plant and
arrived at the door of the personnel office. Plant Manager
Kahle and various labor relations representatives were
there. The scene was one of some confusion. Employees
were hollering, "If Smith goes, we all go," and were making
other statements to that effect. Smith spoke to management
personnel who were present, demanding amnesty for
himself and for all who had participated in the Friday
sickout. He repeatedly insisted that a company commit-
ment be made to this effect. He was told only that there
would be no discipline at that time. Two union shop
committeemen, Gil Wojcik and Glen Kothe, appeared on
the scene and urged Smith to get his people back to work.
late or if you cannot come at all. Several direct telephone lines into the
individual departments where you work have been installed which will allow
you fast response. All of you are obligated to call the plant prior to the start
of the shift when an emergency occurs that will prevent you from reporting
to work." This notice was posted on employee bulletin boards throughout
the plant. The back of every employee badge contained a statement toi the
effect that "If your absence is a must, call (a seven-digit number) to report
your absence or tardiness." Smith testified that there was no rule or
requirement that employees phone in unless they were going to be absent
more than 5 days. The above-noted written requirements. applying not only
to absences but even to expected tardiness, flatly contradicts Smith's
testimony. All agree that a system exists pursuant to which any employee
who called in received a call-in number which would then serve to verify the
fact that he or she complied with the requirement. In light of these
considerations, I must discredit Smith's testimony on this point.
471
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith's reply to Wojcik and Kothe was that this incident
was none of their business. Labor Relations Representative
Lucas reminded Smith that he was a steward and also
insisted that he get his people to go to work. During the
confrontation, the buzzer sounded signifying the start of
the second shift. When the employees became satisfied that
no discipline would be invoked that afternoon, they
returned to work. They punched in on an average of 7
minutes after the buzzer.
On the same evening, Smith received a call at the plant
from California from UAW-Chrysler Department Interna-
tional Representative Richard A. Ruppert. They spoke at
some length about the events which had taken place.
Ruppert reminded Smith that the Union had promised to
take a strike authorization vote in his department. Smith's
reply was that people were very excited and he did not
know if he could control them. Ruppert's admonition to
Smith was that, if Smith could not forestall a walkout, he
should make sure that he did not lead it.
5. The June 9-14 events
By Sunday, June 9, most UAW officials had returned to
Detroit from California. A special meeting of department
9110 employees was held on Sunday morning at the Local
140 hall. At this time, several International officials spoke
and told the assembled employees that the Union was
trying to assemble a strike package 13 which would be the
subject of a strike authorization vote. Smith stood up and
spoke at the meeting, accusing union officers of collaborat-
ing with Chrysler in whitewashing grievances which had
been filed. Region One UAW International Representative
John Cooper attended this meeting and urged the employ-
ees who wanted to strike Warren Truck to follow the
procedure outlined in the contract and the UAW constitu-
tion. The audience reply to Cooper - one with which
Smith concurred - was "To hell with procedure. We want
a strike." 14
On the afternoon of Monday, June 10, Smith was called
into the labor relations conference room at Warren Truck
and was discharged. Present at this interview with Smith
were Body Shop Production Superintendent James A.
Wolfe, Local 140 President Arthur Harvey, and Grier.
Wolfe read to Smith the supervisor's report which called
for Smith's discharge for participation in and leadership of
an unauthorized work stoppage on May 31 and June 3.
Smith was discharged and escorted from the plant. On the
same afternoon, three other individuals who participated in
the demonstration of June 3 - Rivard, Biechler, and
Forman - were discharged for participating in the
demonstration and brief work stoppage which occurred on
that day.
Within 2 hours after Smith left the plant on the afternoon
of June 10, employees began filing out in large numbers.
For the next 3 days, a wildcat strike took place which had
13 The grievance procedure outlined above permits a strike during the
contract term under certain limitations. One of the requirements is that the
International - not the local at the plant in question - forward to the
Respondent a "seven day letter" in which it outlines and specifies the
gnevances over which the strike will take place if such grievances are not
resolved in the course of seven days of bargaining. Assembling a strike
package simply means doing the "homework" that is necessary to identify
and substantiate the grievances which are causing in-plant unrest. These
the effect of shutting down the entire Warren Truck
operation on both shifts. All sides agree that Smith was an
active participant and the leader of the wildcat strike which
took place following his discharge. On the Monday evening
when the strike began, about 250-300 people went to the
union hall. Smith informed them that he had been fired
and voiced the opinion that he would never get his job
back except through strike action. Smith stayed at the hall
most of the night, organizing groups and committees for
the purpose of carrying on the strike.
On the following morning, the strikers established picket
circles at all of the entrance gates to the plants and urged
employees to refrain from reporting. The strikers handed
out a mimeographed sheet, reciting the events of the May
31 strike and the events of the ensuing week and the fact
that Chrysler had fired four employees because of previous
walkouts. It called upon all employees to unite in the
defense of the metal shop workers and asked employees to
go straight to the union hall rather than going to work.
Employees began congregating at the union hall. UAW
Regional Director George Merrilli spoke to them and
urged them to return to work. They refused so the UAW
leadership closed the hall. The Union also stationed union
officials at plant gates during reporting hours for the
purpose of urging employees to report to work. It also
distributed a pamphlet urging workers to return to their
job. During this week, the strikers distributed another and
lengthier sheet which, among other things said, "People in
key Chrysler areas like Dodge Main, Chrysler Engine,
Warren Stamping, Jefferson, Lynch Road, Eldon Forge -
we urge [you] to support our walkout actively any way you
can in your own plants." 15
Chrysler sought and obtained from the Circuit Court of
Macomb County a temporary restraining order directed at
the UAW, its officers, and various named and unnamed
individuals, requiring an immediate cessation of the strike
and withdrawal of the picket lines. A hearing on a
preliminary injunction was set for Friday afternoon, June
14. Copies of the temporary restraining order were served
on Smith on four different occasions and upon other
strikers as well, but the strike continued. On Thursday
afternoon, June 13, Hon. Hunter D. Stair, Circuit Judge for
Macomb County, came to the plant and held court in the
company parking lot. He was seated on the flat bed of a
company truck which was driven by Respondent's person-
nel manager and was flanked by various UAW officials
who were sitting on the truck bed with him. Dressed in his
judicial robe, Judge Stair spoke through a bullhorn to
Smith and to other strikers, ordering them to cease their
activities and to comply with the order which he had
issued. Smith was standing outside the fence of the plant
and shouted back to the judge with the use of a bullhorn
that the court order was illegal and that the strikers would
continue to disregard it. Judge Stair then ordered the arrest
items are thus noted in the "seven-day letter," and form the basis of the
bargaining during the 7-day countdown.
14 A frequent theme used by "On the Line" and the "Unity News,"
which were disseminated (and often edited) by Smith, was that "Your
procedure is our chains."
i5 While employees at other Chrysler locations did not respond to this
call, it is true that, during the summer of 1974, Respondent experienced a
number of heat walkouts at various of its Detroit area plants.
472
CHRYSLER CORPORATION
of Smith and a large number of strikers. Warren police
arrested Smith and about 20 other strikers and took them
to jail. This action had the effect of terminating the strike.
By Friday morning, the plant was back in operation,
although leafletting of the plant continued.
6. Poststrike events
On June 20, the Union conducted a strike authorization
vote of Warren Truck employees which carried by a large
margin. In the fall of 1974, it sent Chrysler a "seven-page
letter" involving seven issues arising at the Warren Truck
plant. Eventually these issues were resolved by negotiation.
Chrysler discharged some 78 people (including the 4
initially discharged on June 10) who were involved in the
June 10-14 walkout. All of these discharges were grieved;
61 individuals were restored to duty at the plant level; 17
cases were referred to the appeals board. After a consider-
ation discussion among Chrysler and UAW officials, the
appeals board restored 4 more employees to duty and the
International determined, in October 1974, not to take the
13 remaining cases, including Smith's, to the impartial
chairman, because it felt that the conduct of these
individuals during the week of June 10-14 precluded any
possibility of reinstatement under the grievance procedure.
Smith continued his activities, publishing and distributing
pamphlets protesting both the Union's actions and the
Company's actions. Late in the fall of 1974, he held a rally
of employees in the parking lot. In 1975, he ran as a
candidate for the president of Local 140 and received 40
percent of the votes cast. However, he was ultimately
unsuccessful in this effort.
7. Removal of Smith from the premises on May
10 and October 11, 1976, and events leading
thereto
On February 3, 1976, Smith was found guilty in Macomb
County District Court of assaulting a Chrysler security
guard who was attempting to remove him and his sound
amplification equipment from the parking lot of the
Warren Truck plant. In an order, dated March 10, 1976,
denying Smith a new trial, the Michigan State District
Court Judge wrote that Smith was lawfully on the parking
lot at the time of the incident in question by virtue of
unspecified provisions of the National Labor Relations
Act. Respondent has long claimed difficulty in obtaining
assistance from the police of the city of Warren in
removing trespassers from its premises. In April 1976, it
was successful in prevailing on the city council to enact a
municipal ordinance, which took effect May 3, forbidding
trespassing upon the lands or premises of another person.
The ordinance required that the premises in question be
posted with signs forbidding such trespassing as an element
of the offense.
The arrangement of the parking lots at the Warren Truck
plant permits general and unlimited access from public
roads. No one is obstructed or physically restricted in
driving from a public highway into the lots. After parking,
an employee or any other person who seeks entrance to the
Is It was Smith's position that the Ford contract was "a foot in the ass,
not a foot in the door," as contended by vanous UAW officials. The
plant must walk past a guard post, at which point he must
exhibit an identification badge or have other authorization
which permits him to enter the plant. Early in May,
Respondent posted on the fence of the parking lot a sign
which read:
Private parking for employees of Warren Truck
Assembly Plant, Chrysler Corporation. All others using
this property are hereby given notice that they are
trespassing and in violation of S. 242 and S. 243 of the
Code of Ordinances in the City of Warren.
On May 10, 1976, Smith went to Warren Truck's parking
lot in the middle of the afternoon and was talking with
Clarence Williams, an employee, about the forthcoming
national contract negotiations in the auto industry and was
giving Williams some literature expressing a point of view
concerning national contract proposals. As he was talking
to Williams, Smith was approached by plant guards and
members of the labor relations staff. They told him that he
was trespassing and directed him to leave the premises.
Smith replied that he was engaged in distributing literature
concerning the forthcoming contract negotiations and that
he was protected in this effort both by the National Labor
Relations Act and by Respondent's shop rules. Lucas, one
of the management representatives present, replied that
Smith was no longer an employee and therefore he no
longer had the right to be on the premises. They all pointed
to the "No Trespassing" sign which had been posted and
told Smith that if he remained he would be arrested. Smith
replied that they were merely compounding the unfair
labor practice of preventing him from distributing litera-
ture, but left without further incident.
On or about October 11, 1976, Smith again visited the
premises to distribute literature in the parking lot at the
shift change. At this time several other persons were
distributing literature with him. Some were employees and
one other was not. The literature in question was a
pamphlet entitled "Unity News." The subject of the
pamphlet was a dispute which took place at a Local 140
meeting over the ratification of the proposed Ford-UAW
agreement, which purportedly would serve as a model for
negotiations between the UAW and other car manufactur-
ers.'6 The pamphlet protested the efforts of union leader-
ship in seeking to obtain approval of the Ford contract,
and noted that a fist fight had occurred between local
officials and followers of Steve Smith during a discussion
of this question at a meeting of Local 140.
Respondent's agents called the police and went to talk to
various literature distributors. They permitted persons who
were known to be employees (or who identified themselves
as such) to remain and distribute literature but had Smith
and one other nonemployee arrested and removed. Smith
was formally charged with trespassing. His case is still
pending in the state district court.
pamphlet went on to analyze certain asserted deficiencies in the proposed
agreement.
473
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Analysis and Conclusions
1. The discharge of Stephen S. Smith
It has been long and well established, by both the Board
and the courts, that an employer may lawfully discharge an
employee for engaging in a strike which is forbidden by the
provisions of a no-strike agreement, because such activity
is not protected by the Act.'7 When such a stoppage,
normally called a wildcat, occurs, an employer is free to
pick and choose whom he will fire and whom he will
reinstate after the strike, so long as the basis for the
selection is not discriminatory, J. P. Wetherby Construction
Corp., 182 NLRB 690, 697, fn. 31 (1970); American Beef
Packers, Inc., 196 NLRB 875 (1972). Smith's discharge
notice stated that he was being discharged for "participa-
tion in and leadership of an unauthorized work stoppage."
Either type of activity - mere participation or active
leadership - is in and of itself sufficient grounds for
removal.
Both the General Counsel and the Charging Party
concede, as indeed they must, that the walkout or
"sickout" of more than 80 second-shift employees in
department 9110 on May 31, 1974, was a violation of
article 5 of the National Chrysler-UAW contract. Nor is
there any question from the evidence that Smith was
physically in the company of the strikers during the entire
period of their unprotected activity. General Counsel and
the Charging Party attempted to avoid the inevitable
impact of settled law upon admitted facts by claiming that
Smith was not obligated to be at work because of illness,
that his discharge was the product of disparate treatment of
Smith vis-a-vis other employees, and particularly other
chief stewards who in the past have engaged in unlawful
strikes and have gotten away with it, and that the asserted
ground for discharge was pretextual. I will proceed to each
of these replications in that order.
Smith chronically suffered from bronchitis. Despite his
recurring problem, he continued to work for 4 years in
department 9110,18 where assertedly plant fumes were too
noxious on May 31 to permit him to go to work. Indeed,
the physical exertion involved in his routine duties was
minimal, since Smith, a shop steward, was entitled to spend
his day adjusting grievances rather than welding. The flare-
up of this ailment on this particular date, when a wildcat
strike was clearly anticipated, is at least a curious and
convenient coincidence which Smith documented very
well, first at the company clinic and then with his own
physician. However, he took none of the routine precau-
tions which one might expect from a person who had a
bona fide ailment. Instead of rest and relaxation,' 9 he
chose to take part in a wildcat strike. Instead of avoiding
noxious fumes, he went to two barrooms in the course of 3
hours where he drank beer and inhaled large amounts of
noxious tobacco smoke. The antibiotic and the expectorant
which his physician prescribed called for periodic doses
1T N.L.R.B. v. The Sands Manufacturing Co., 306 U.S. 332 (1939);
N.L.R.B. v. Magnavox Company of Tennessee, 415 U.S. 322 (1974); N. LR.B.
v. Rockaway News Supply Company, Inc., 345 U.S. 7 (1953); Russel Packing
Company and Peerless Packing Company, 133 NLRB 194 (1961); Alton Box
Board Company Container Division, 155 NLRB 1025 (1965); Stop & Shop,
Inc., 161 NLRB 75 (1966); Chesty Foods, Division of Fairmont Foods
Company, 215 NLRB 388 (1974).
every 4 or 6 hours. However, Smith did not bother to have
the prescriptions filled or to take the medicine prescribed
for nearly 24 hours after consulting his physician.
Contrary to Smith's testimony, the Respondent did have
a routine and well-defined procedure which employees
were required to follow if they were expected to be absent
or even if they were even expected to be late to work. Some
of the employees engaged in the "sickout" of May 31 gave
colorable compliance to this procedure by calling in, albeit
from a bar, to let the Company know that they were too ill
to work. However, Smith made no effort in this regard.
Hence, he can hardly claim benefit for an absence from
duty due to illness when the total course of his behavior
belied the existence of any genuine sickness serious enough
to warrant his absence and when he failed to comply with
what Respondent regularly required of employees with
genuine illness.
What is dispositive of this contention by the General
Counsel is that Smith was not discharged for an individual
act of absenteeism - for laying out sick. Were this the
ground on which Respondent effectuated Smith's removal,
it might be necessary to look more closely at whether
Smith's symptoms truly prevented him from coming to
work in a smelly shop. Respondent did not discharge Smith
for nonfeasance but for an affirmative act of misfeasance.
He was discharged for active participation in a plan of
concerted action with other employees and for lending to
that activity both impetus and direction. A claim of
sickness, whether real or bona fide, can hardly serve as a
shield for such an active wrongdoing, any more than
sickness could serve as an excuse for assaulting a
supervisor or vandalizing company property.
Smith was not a mere bystander to the activity here in
question. He did not suffer the misfortune of finding
himself at the wrong place at the wrong time, only to be
swept along with the crowd. I discredit Harig's statement
that some of the more activist members of department 9110
did not want Smith to be present at their meeting at the
Keweenah Bar because Smith was not militant enough for
them. Smith and almost everyone else on the second shift
in department 9110 knew in advance of the impending
meeting and Smith actually urged one of his followers,
Olivia Fawlkes, to be present. Despite his asserted illness,
Smith went from the doctor's office to Keweenah because
he felt he should be present during the discussion of
grievances. During the course of the activity, he bought
drinks and mingled with his constituents. When they were
all ordered from the Keweenah, it was Smith who arranged
an alternative location for the strike meeting, rather than
insisting that his constituents return to work, as did two
other union officials who addressed them during the course
of the afternoon. While at NefWs Lounge, Smith gave some
order to an otherwise unstructured gathering. He asked one
striker to take notes, he quieted individuals so that the
Local's vice president could be heard, and he introduced
him. Smith also took charge to the extent of organizing a
1s At one time, Respondent furnished Smith with an inhaler which he
could wear at work to protect himself from bothersome fumes.
Y9 Dr. Salomon testified that his normal advice to a person suffering from
bronchitis is to go home, get plenty of rest, take plenty of fluids, and use the
medicine prescribed. On May 31, he did not actually tell Smith to go home.
474
CHRYSLER CORPORATION
picnic of strikers to take place a few days later. Smith was a
dexterous and agile political figure within Local 140. It is
clear that if the factional activity on May 31 was not
completely under his control at the beginning, it was
certainly his show by the end of the evening, and every
effort which he made during the course of the "sickout"
was designed to assure this conclusion. Smith's followth-
rough activities on the following Monday of assembling
employees in the parking lot, marching en masse to the
Labor Relations Office, and then serving as their spokes-
man to demand amnesty not only for himself but also for
everyone involved in the affair leave no doubt whatsoever
of his leadership role on May 31.20
Smith was elected to his position as shop steward by the
second-shift employees in his department on two occa-
sions. He did not cease to be a leader of these people in
matters involving labor relations merely by leaving the
plant gates. Others, including Respondent's officials, had
every right and reason to regard Smith as the leader of any
gathering of department 9110 employees regardless of
where it took place, especially if no other union officials
were in the area. Smith regularly spoke for such employees
in the plant during short walkouts which had occurred
from time to time and he had adjusted these problems
when they arose. One of Smith's admitted reasons for
coming to the Keweenah instead of going home was that
grievances were going to be discussed. It was Smith who
was contractually responsible for processing grievances for
department 9110 employees at the first step and who was
looked to by employees for this purpose. Not long before
the May 31 walkout, it was Smith who informed Manty in
the course of a private conversation that department 9110
employees were getting angry over the failure of Respon-
dent to adjust grievances and that they were going to take
drastic action and were willing to incur possible disciplin-
ary action to resolve these matters. Accordingly, in light of
considerations relating to his status alone, in addition to his
actions on the afternoon and evening in question, I
conclude that Smith not only was engaged in an illegal
walkout but that his presence provided this action with his
active approval and encouragement, not merely negative
leadership, and that Respondent had ample basis for
concluding that Smith exercised a leadership role in the
walkout when it determined to discharge him on May 31.
The contention that disparate treatment was accorded to
Smith is unsupported. A total of 82 employees were
disciplined for the May 31 incident. While Smith was the
only one to be discharged, he was not the only one to be
disciplined, and the severity of this discipline vis-a-vis
others is easily explained by the leadership role which in
fact he exercised. It is true that, on some other occasions,
Respondent has not discharged other chief stewards in
some walkout situations. The reference made by the
General Counsel is to the "jump the gun" walkouts which
occurred in September 1973, at the end of the 1970-73
20 As noted previously Respondent places heavy reliance on what it
terms "negative leadership," a concept derived from a series of arbitration
awards. With all due respect to these arbitration awards, the impartial
umpire who rendered them was called upon to construe and apply a
contract, not the National Labor Relations Act. In construing the Act, the
Board has expressly avoided sanctioning any reliance in discharge cases on
negative leadership by a shop steward, because such a concept would
contract. However, Respondent placed in the record
arbitration awards going back many years showing that
Respondent has frequently and successfully discharged
chief stewards in illegal walkout situations occurring
during a contract term, and that Smith's position is not
perceptibly different from that of others who experienced
similar treatment in the past. One can hardly argue
disparate treatment unless the alleged discriminatee is
singled out for special and unique treatment in contrast to
others who were similarly situated. The record herein
contains the tales of too many other chief stewards who
were discharged for leading illegal walkouts to make such a
contention stick.
The General Counsel's third attempt to avoid the
conclusion that Smith was lawfully discharged for engaging
in and leading a wildcat strike is that the asserted reason
proffered by Respondent for the discharge was not the real
reason, but is merely a pretext which has been served up to
cloak its abiding desire to get rid of an aggressive steward. I
credit the several statements in the record that, over a
period of years, Respondent's management personnel,
including some of those who were closely connected with
the discharge decision, had from time to time referrred to
Smith in disparaging terms and that one or more had,
during this same period of time, expressed the hope and the
desire that Smith could be terminated. Such evidence is
often the stuff of which a valid claim of pretext is made.
However, the question of pretext normally arises when an
employer who is animated by antiunion considerations
seizes upon a long-tolerated habit or practice or upon an
accidental occurrence or happenstance to rid its company
of any unsuspecting union activist, when the individual in
question was unaware that this act or omission was a
dischargeable offense. The description does not apply to
the events which governed Smith's termination. He was not
caught in a web of circumstances which was beyond his
control or of which he was unaware.
In this case the events which formed the predicate for
Smith's discharge were completely within his own personal
control. Smith deliberately opted for the course of conduct
which led to his termination after having been squarely
placed on notice of the consequences of continuing to do
what he was doing. He voluntarily attended the meeting
which took place at the Keweenah Bar rather than going
home to attend to his asserted illness. When a wildcat
strike was plainly in the works, Manty confronted Smith
twice and warned him once as to the possible consequences
of his actions. Instead of taking advantage of this notice to
back off and either go to work or leave the crowd of
strikers, Smith persisted in a course of conduct which
predictably led to his termination. Both before and after his
discharge, he engaged in a continuing power play with
Respondent. By engaging in labor relations brinksmanship,
he willingly incurred the risk of what ultimately occurred.
impose different and greater statutory responsibilities upon an employee
who engages in protected activities as a chief steward than one who
exercises Section 7 rights in a rank-and-file position. The Act allows for no
such disparity. Pontiac Motors Division, General Motors Corporation, 132
NLRB 413 (1961). Accordingly, I place no reliance on this feature of
Respondent's defense in arriving at the decision in this case.
475
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Giving a warning before acting is wholly inconsistent
with the notion of pretext. The fact that Smith's affirmative
conduct, even in the absence of a warning, clearly left him
vulnerable, and the fact that Respondent made an initial
determination to fire him immediately after Smith refused
to heed Manty's warning is further evidence that Respon-
dent's asserted reason for firing Smith was its real reason.
Whether Respondent is happy that Smith, an aggressive
shop steward, is no longer in its employ is not a matter
which establishes discriminatory motivation.2 ' The effi-
cient cause of Smith's demise was Smith's own deliberate
choice of alternatives. In light of these considerations, I
conclude that so much of the amended complaint which
alleges that Stephen S. Smith was discharged in violation of
Section 8(a)(1) and (3) of the Act should be dismissed.
Respondent makes certain additional arguments in
defending its action which need not be passed upon. As I
have concluded that Smith was lawfully discharged
because of his activities on May 31, it is not necessary to
determine whether his leadership of a demonstration in
front of the Labor Relations Office the following Monday
also constituted a violation of the no-strike provision of the
national agreement and a further ground for discharge.2
Respondent also argues that Smith's postdischarge conduct
should disqualify him for reinstatement, even if he were
discriminatorily discharged. It argues that Smith's conduct
during the week of June 10-14 in inducing and encourag-
ing an illegal wildcat strike of 6,000 Warren Truck
employees and the contumacious attitude displayed in
defying state judicial process until he was arrested and
physically removed from the picket line serve to disqualify
him from further employment irrespective of the validity of
the discharge. In light of the above findings and conclu-
sions, these questions need not be reached.
2. The removal of Smith from company premises
in 1976 as a 8(a)(1) violation
The General Counsel contends that Respondent unlaw-
fully removed Smith from its parking lot on May 10, 1976,
and again October 11, 1976, when Smith was distributing
literature relating to the negotiations of the 1976 contracts
in the auto industry. His argument is that Smith, a
discriminatorily discharged employee, was nevertheless an
employee at the time in question and hence was entitled to
engage in protected activities and union activities on
company premises during nonworking time and in non-
working areas. In support of this contention, he relies on a
line of Board cases having their origin in the Supreme
Court's seminal decision of N.L.R.B. v. Babcock & Wilcox
Company, 351 U.S. 305 (1956). While I agree with the
General Counsel's ultimate conclusion, I must arrive at the
conclusion by a different route.
The General Counsel placed in evidence Respondent's
"Guide to Good Conduct for Chrysler Employees," which
outlines a list of forbidden activities for Chrysler employ-
21 Alion Box Company, supra, and many other cases.
22 The fact that the Respondent, in deference to a union request,
postponed Smith's discharge for a period of a week to allow union officials
to return to the city does not affect the validity of the discharge or amount
to a condonation of Smith's activities. See Fairmont Foods Company, Inc.,
supra. From the outset, Respondent was apprehensive that Smith's discharge
ees. The guide lists as examples of misconduct "unautho-
rized solicitation, except such solicitation during employ-
ees' non-working time as is protected by the National
Labor Relations Act," and "unauthorized distribution of
literature, except such distribution during non-working
time in non-working areas as is protected by the National
Labor Relations Act." In a decision which was issued after
the close of the hearing in this case arising in Chrysler's
Eight Mile Road Stamping Plant, located a short distance
from Warren Truck, the Board found such rules were
invalid because of vagueness. Chrysler Corporation, Eight
Mile Road Stamping Plant, 227 NLRB 1256 (1977).
However, in light of the conclusion herein that Smith was
lawfully discharged on June 10, 1974, it follows that he
could not claim benefit of the Board's recent decision in
regard to his 1976 actions. In 1976 he was not an employee
but a stranger at the Warren Truck plant. Accordingly, his
standing vel non to distribute literature on company
parking lots on the dates in question must be governed by
the law concerning the validity of nonaccess rules rather
than the validity of no-distribution rules relating only to
employees.
Respondent concedes that its rules did not prohibit
employees from distributing literature in the parking lot on
the occasions in 1976 when Smith was removed, although
its earlier actions in preventing Smith from engaging in
distribution when he was employed by the Respondent
were not consistent with this concession. 23 Respondent
placed on the stand management witnesses who stated that
it had always maintained a policy forbidding nonemploy-
ees from coming on to company parking lots at Warren
Truck to distribute literature or to transact business
unrelated to the manufacturing of trucks. Until May 1976,
when it posted a no-trespassing sign following the enact-
ment of the Warren city ordinance, Respondent had never
reduced this policy to writing or promulgated it in writing
in any way. On the contrary, there is abundant testimony
from several witnesses that the Warren Truck parking lot
was the regular scene of all manner of commercial and
other activity unrelated to the manufacturing activity of the
plant. Respondent's former labor relations representative,
Grier, now a Wayne County deputy sheriff, testified that
one could buy anything he wanted on the company
parking lot, including alcohol and narcotics. I also credit
record testimony that farmers came to the parking lot from
time to time to sell produce to Chrysler employees and the
parking lot was a beehive of activity, especially during
summer months and particularly during meal breaks and at
the change of shift. Employees phoned out for pizzas which
were delivered to them in the parking lots by pizzeria
employees during their lunch breaks. Chicken dinners,
shrimp dinners, and other delicacies were available at this
place from outside caterers. On one occasion during the
1976 presidential campaign, a supporter of the Carter-
Mondale ticket stood on company premises near the guard
shack and handed out to employees bags of peanuts
would trigger a general walkout at Warren Truck and wanted union officials
to be on hand in this eventuality to lend moral support to its efforts to
enforce the national contract. The prudence of this action was borne out by
the events of June 10-14.
23 Several witnesses testified that the company rules prohibited any
distribution of literature on company premises by employees.
476
CHRYSLER CORPORATION
containing presidential election propaganda. The record is
unclear whether this individual was or was not a company
employee.24 The record is quite clear that, during the early
morning reporting hours, an outside vendor regularly
stands on company premises near the guard shack, and, in
addition to stocking a vending machine with newspapers,
sells copies of the Detroit Free Press to plant-bound
employees as they pass.
If Respondent ever had a policy of nonaccess to the
Warren Truck plant parking lot by outside individuals, it
was a policy honored more in the breach than in the
observance. In light of testimony to the contrary, which I
credit, and of record exhibits which include a photograph
of a newspaper vendor selling papers to incoming employ-
ees, I discredit testimony of company officials that it
regularly maintained a nonaccess policy prior to May 1976,
and I find incredible certain self-serving statements which
they made in the record that plant management did not
know that the above-recited commercial activity was going
on right under their noses, when the existence of such
activity was apparently common knowledge to everyone
else at the plant.
Respondent tried to draw some distinction between its
asserted nonaccess policy before May 1976, and after that
date, when the Warren city ordinance was in effect.
Respondent concedes that, before this time, outside
vendors visited its premises but contends that it was
powerless to do anything about it because the city police
would not cooperate when Respondent made trespassing
complaints. With its many resources and its large comple-
ment of plant protection personnel, Respondent had no
difficulty in preventing pedestrian trespassers from ventur-
ing beyond the guard shacks and into the plant buildings.
It failed to explain why the same protection could not be
and was not established at the entrances to its parking lots
if, in fact, it had any active desire to enforce a general
nonaccess policy. A claim that it could not enforce it in the
absence of a city ordinance is insubstantial and amounts to
a concession that its regular practice was to permit
outsiders to visit its parking lots on a whole host of errands
unrelated to making trucks.
On at least four occasions before he was discharged,
Smith was prevented by Respondent's management or
plant guards from distributing literature in nonworking
areas on nonworking time. In March 1972, he was
prevented from distributing campaign materials in support
of his candidacy for UAW convention delegate at the
compact building adjacent to the main Warren Truck
plant. In May 1973, he was prevented by plant guards from
distributing UAW election literature near the union
election polling places located in two trailers which were
parked on company premises. In the fall of 1973, during
the UAW strike at Chrysler, company employees were
being paid at trailers parked on company parking lots.
Smith was prevented by Labor Relations Supervisor Lucas
from disseminating to employees who were reporting for
pay some literature opposing the ratification of the
proposed UAW-Chrysler contract. In April 1974, Smith
and a campaign supporter were prevented by plant guards
24 Respondent has also permitted Local 140 to park trailers on company
parking lots which were used as voting booths at internal union elections.
from distributing campaign literature urging his election as
convention delegate to employees in the parking lot near
the compact building. While these episodes are not alleged
to be unfair labor practices, they do evidence a company
practice aimed specifically at Smith which was designed to
prevent him from engaging in protected activities even
before his discharge, irrespective of what its general rules,
practices, or policy might have been.
There is little doubt that the general tenor of remarks
contained in the pamphlets and papers distributed by
Smith over the years has been scurrilous, inflammatory.
and in the view of some, insurrectionary. However, his
right to distribute material on company property, either as
an employee or as a nonemployee, cannot turn on the
nature of the comments contained in the literature or on
the writer's mode of addressing a subject, so long as the
literature deals with wages, hours, and terms and condi-
tions of employment. United States Metals Refining
Company, 218 NLRB 841 (1975). It is clear that Smith's
pamphlets not only touched upon these subjects but also
hit them hard.
Unlike many discharged employees, Smith pursued his
union activities long after his termination. In the late
winter of 1975-76, these activities lapsed over into criminal
conduct when he assaulted a plant guard on company
property. As the result of a posttrial motion aimed at
overturning a conviction for this offense, Smith obtained
some dicta in a state district court opinion to the effect that
he had a legal right to disseminate literature on company
property under the terms of the National Labor Relations
Act. Within a month after this opinion was rendered,
Respondent was able to prevail upon the city of Warren to
enact the no-trespassing ordinance here in evidence which
it invoked to remove Smith from the company property in
May and again in October. While the ordinance is one of
general application and applies to residential as well as to
industrial property, it is fair to infer from the evidence in
this record that a significant part of the legislative history
leading to its enactment involved Respondent's problems
with Smith.
The only difference noted from this record as to the
postenactment existence of a nonaccess rule of general
application in Respondent's parking lot is the posting of
the sign, referred to above, and one vaguely noted occasion
when a plant guard asked a vendor to leave the premises.
The Free Press vendor continues to sell papers on company
property as he had in the past. And there is no indication
that the lots are any the less available now than they were
previously for the general purchase of pizzas, chicken
dinners, and other goods, wares, and merchandise. Accord-
ingly, I conclude that when Smith was directed by
management personnel to leave the parking lot in May
while he was giving literature to another person relating to
forthcoming auto industry contract negotiations, and when
he was arrested in October for disseminating literature
concerning a Local 140 meeting and other matters bearing
upon the ratification of a national agreement between the
UAW and its 1976 strike target, Respondent was not
uniformly and evenhandedly enforcing a no-access rule
Most Local 140 members are Chrysler employees but by no means are all of
them Warren Truck employees.
477
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
designed to keep all nonemployees from its premises. It
was then, as before Smith was discharged, singling out
Smith and Smith's literature for proscription from its
premises. Accordingly, Respondent's actions on these
occasions violated Section 8(a)(1) of the Act.
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following:
CONCLUSIONS OF LAW
1. Respondent Chrysler Corporation is an employer
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. International Union, United Automobile, Aero-
space, and Agricultural Implement Workers of America
(UAW), and its Local 140, are, respectively, labor organi-
zations within the meaning of Section 2(5) of the Act.
3. By removing Stephen S. Smith from its premises on
May 10, 1976, because he was engaged in concerted
protected activities and by removing Smith and causing
him to be arrested on October 11, 1976, because he was
engaged in concerted protected activities, Respondent
herein violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices have a close,
intimate, and substantial effect on interstate commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent herein has engaged in
certain unfair labor practices, I will recommend that it be
ordered to cease and desist therefrom and that it be
required to take certain affirmative actions designed to
effectuate the purposes and policies of the Act. Since one
of the unfair labor practices found herein resulted in an
arrest and pending prosecution of Smith for trespassing
which was stimulated by a criminal complaint filed by
Respondent, I will recommend that Respondent be
required to notify appropriate local officials in writing that
it has withdrawn its criminal complaint against him.
Upon the foregoing findings of fact, conclusions of law,
and pursuant to Section 10(c) of the Act, I make the
following recommended:
25 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
ORDER25
The Respondent, Chrysler Corporation, Dodge Truck
Plant, Warren, Michigan, its officers, supervisors, labor
relations representatives, plant protection personnel, and
all of its agents, successors, and assigns, shall:
1. Cease and desist from restricting or forbidding the
peaceful and orderly distribution in employee parking lots
by nonemployees of literature relating to wages, hours, and
terms and conditions of employment, and shall cease and
desist from the nonuniform enforcement of any rule,
practice, or policy restricting or forbidding access to its
employee parking lots by persons other than employees
who are engaging in activities protected by Section 7 of the
Act.
2. Take the following affirmative actions designed to
effectuate the purposes and policies of the Act.
(a) Notify, in writing, appropriate civil authorities in the
city of Warren, Michigan, and/or Macomb County,
Michigan, that it is withdrawing a criminal complaint
lodged against Stephen S. Smith because of the incident
occurring on or about October 11, 1976, at the parking lot
of the Warren Truck plant, and send a copy of such
notification to Stephen S. Smith or his attorney.
(b) Post at its Warren, Michigan, plant copies of the
attached notice marked "Appendix."2 6 Copies of said
notice, on forms provided by the Director for Region 7,
after being duly signed by representatives of Respondent,
shall be posted immediately upon receipt thereof, and be
maintained by Respondent for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Director for Region 7, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER RECOMMENDED that insofar as the
amended complaint herein alleges any violation of the Act
which has not been found, the amended complaint is
hereby dismissed.
2s In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
478